First settlement reached in Utah's contentious road claims

If you've spent much time wandering around the rural West, especially in southern Utah, you may have come across an extensive network of highways. You might not have recognized them as such, though -- these "highways," in many cases, are nothing more than cow paths, faint two-tracks, and sandy washes. But an antique Western law allows many of them to be considered legitimate public roads.

Revised Statute 2477, passed in 1866, allowed for the construction of highways across public land. It was intended to help settlers move into the West. But in the past decade, it's become a way for counties to claim rights-of-way on old roads, no matter what shape they're in – a move that thwarts potential wilderness designation and opens sensitive areas to motorized use and development (for more background on the law's convoluted history, see our stories "Road warriors back on the offensive" and "The Road to Nowhere").

Since 2011, 22 Utah counties have filed lawsuits against the federal Bureau of Land Management, claiming rights-of-way on 36,000 miles of mostly-dubious roads, many crossing national parks, national monuments, and wilderness study areas. Now, the first court settlement in those lawsuits has been reached. The federal Bureau of Land Management, the state of Utah, Juab County and three environmental groups came up with a way to handle disputed roads in the Deep Creek Mountains wilderness study area west of Salt Lake City.

Juab County abandoned its claim to this road in the Deep Creek Mountains in a recent settlement. Courtesy Southern Utah Wilderness Alliance.

Earthjustice represented the Sierra Club, Wilderness Society and Southern Utah Wilderness Alliance in the suit, filed in 2005. Under the settlement, Juab County will receive three rights-of-way on routes that it proved had been in use before 1976 (when R.S. 2477 was repealed). However, it cannot widen or pave those roads, which access scenic camping areas and historic sites in the Deep Creek Mountains. The county also agrees to give up its other R.S. 2477 claims, put restrictions on off-highway vehicle use, and waive any future road claims in wilderness areas or proposed wilderness. For its part, the BLM must re-open access to the Camp Ethel area. "This settlement is a great first step and we hope this will serve as a template on how to resolve other public road lawsuits involving similar types of road claims. It also demonstrates that the state and counties will take preservation issues into account when resolving road claims," said Utah Attorney General John Swallow in a statement quoted in Greenwire.

The second settlement in the Utah cases might come in Kane County. In March, a federal district judge approved 12 of the county's 15 R.S. 2477 claims, including on roads that cross the Grand Staircase-Escalante National Monument, but that decision has been appealed by both sides. In an interesting twist, in May two Kane County ranchers filed papers seeking to get roads on their lands removed from the suit; they want those roads to remain private, rather than being opened to the public, reports the Salt Lake Tribune:

Their intervention marks a new front in Utah's road controversies, pitting counties against their own residents.

"Nobody has taken into account these private property owners," (Chris) Odekerken's lawyer, Bruce Baird, says. "The county is in a philosophical fight with the feds. It's a fight between two dinosaurs, and my clients are the rodents scurrying underneath trying to not get squished."

And the dinosaurs may soon be battling over much more than just Utah. R.S. 2477 claims are on the Vermont Law School's "Top 10 Environmental Watch List" for 2013. Such claims could affect millions of acres of public land all across the West -- in Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Washington, and Wyoming. As the school sums it up:

Other western states are likely watching Utah’s land grab, waiting to see what the federal courts will do with these claims. Several states, including Alaska, have earmarked funds for the study of “potential” R.S. 2477 roads, and they will likely increase funding if the Utah lawsuits succeed. States like Nevada, the birthplace of the original Sagebrush Rebellion, are also ready and waiting to jump on the R.S. 2477 bandwagon if the federal courts validate even a small percentage of Utah’s claims.

It'll be interesting to see how the other 29 lawsuits are resolved – and how long it takes. Stay tuned. And if you want even more background on Utah's road wars, check out this book coming in November from historian Jedediah Rogers, called Roads in the Wilderness: Conflict in Canyon Country.

More from Growth & Sustainability

"scenic camping areas"!!!! Oh the horror! Good to know Earth Justice, Sierra Club, et al are protecting us from this abomination. The idea that some young family on a budget might just drive out to some beautiful area, park their car, set up a tent, catch a coupla trout, build a fire, and roast marshmallows, while listening to the crickets and looking at the stars is just reprehensible. Good to hear the road can't be improved in any way, keep those riff raff driving 2wd econoboxes out.

Carolyn Hopper

Aug 27, 2013 10:18 PM

If you tool around the country side looking for good places to watch the stars, you would know that you do not have to have roads reopened across landscapes of wilderness characteristics. This road use claim from Kane county and other officials in Utah is mostly about driving ATV's across land that needs some protection from riders who have no clue about the land across which they ride. It has nothing to do with preventing any young family on a budget from enjoying places in woods or desert from enjoying Nature. Obviously Robb has no idea about all the places open to enjoy right now.

Charles Hopton

Aug 28, 2013 12:18 AM

Many of these, so called, roads have become playgrounds for off road SUV's and dirt bikes.they are tearing up the land and creating brown snow in Colorado, causing the snow to melt early. This means that farmers and ranchers don't have the water when they need it. Do politicians in Utah think of this when the prices for meat and vegetables go up in the grocery store?